Julianne Ulrike Stamm v Tiwi Beach Hotel Ltd. [1998] KECA 197 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that a plaintiff represented by a lawyer need not attend court personally, and set aside a wrongful dismissal and a KShs 5 million damages award.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether a plaintiff who is represented by counsel must be personally present at the hearing of the suit, failing which the claim must be dismissed under Order IXB rule 4(1) of the Civil Procedure Rules
- 2.Whether the counter-claim is severable from the defence and the claim such that it could be heard independently after dismissal of the plaintiff's claim
- 3.Whether the award of damages 'for loss of user' of the suit property was sustainable
Key legal issues
#Whether the plaintiff's personal presence at the hearing is a precondition to the court hearing her case
It is not; a plaintiff represented by counsel may prove the case through any competent witness or by counsel's legal arguments, and dismissing the claim for the plaintiff's personal non-attendance was totally erroneous.
Order 17 rule 2(1) requires the party having the right to begin to state its case and produce evidence on the issues it must prove, but contains no requirement that the plaintiff personally testify. Evidence may come from any competent witness, and legal argument by counsel suffices. The amendment substituting 'attend' for 'appear' in Order IXB rule 4(1) was a distinction without a difference, and the Din Mohamed and Finaughty decisions still stand good.
Whether the counter-claim could be heard and determined separately after dismissal of the plaintiff's claim
No; the counter-claim is not severable from the defence, and the learned judge erred in determining it under Order IXB rule 4(3) as if it stood by itself.
Following Doge v Kenya Canners, a counter-claim is not severable from the defence. Here the claim and counter-claim arose directly out of the same subject matter - the occupation of the suit property and the alleged protected tenancy - and were clearly inter-woven. Having wrongly dismissed the claim, the judge could not properly proceed to determine the counter-claim in isolation, nor hold that the plaintiff had become a trespasser.
Whether the award of K.Shs.5,000,000 as damages for loss of user could stand
It could not; loss of user is not available to a landowner, the proper claim (if any) being for trespass/mesne profits, which could not be assessed on a lump sum basis.
Loss of user damages compensate for deprivation of a chattel, not land. A landowner kept out of property may claim mesne profits - the economic rental value - but only if lawfully entitled to possession, and such damages must be assessed with reference to the rental value over the period, not as a lump sum. The defendant also knew the plaintiff claimed protection under Cap 301, so the award was premature and wrong.
Legal principles established
#- A plaintiff need not be personally present at the hearing of a suit if represented by duly instructed counsel; the case may be proved through other competent witnesses or by legal argument of counsel.
- A counter-claim is not severable from the defence and cannot be determined independently of the claim.
- A tenancy protected under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act can only be terminated as provided for in the Act.
- Damages for loss of user are unavailable to a landowner out of possession; any claim for being kept out of property lies in trespass/mesne profits and cannot be assessed on a lump sum basis.
Court orders
#- 1.Both appeals (Civil Appeal No. 57 of 1996 and Civil Appeal No. 56 of 1996) allowed
- 2.Costs of the appeals and costs below awarded to the appellant
- 3.Proceedings in the superior court to proceed to hearing de novo before any other judge
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Mombasa
- H.C.C.C. No. 495 of 1989
- Jurisdiction invoked
- First appeal to the Court of Appeal from the decree of the High Court (no specific constitutional/statutory provision stated in the judgment)
- Consolidated with
- Civil Appeal No. 56 of 1996
Relief refused
#Respondent's contention that the plaintiff's claim stood no scrutiny after the defendant obtained title to the suit property
The plaintiff had pleaded, in the alternative, protection under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, and the claim and counter-claim were inter-woven and not severable
Costs
Both appeals allowed with costs here and costs below.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
A plaintiff does not have to be personally present when he is represented by duly instructed counsel as was the case here. It is for a plaintiff's counsel to decide how to prosecute his case.
In Doge vs. Kenya Canners [1982-88] 1 KAR 759 this court held that the counterclaim was not severable from the defence.
It is trite law that a tenancy under the Act can only be terminated as provided for in the Act.
In the end result, both the appeals are allowed with costs here and costs below and it is ordered that the proceedings in the superior court do proceed to hearing de novo before any other judge.
Issues in the judgment
#The judgment inconsistently refers to the dismissed suit as both H.C.C.C. No. 495 of 1989 and 'H.C.C.C. NO. 495 of 1996' in the same passage.
The judgment contains a duplicated sentence within the passage on the plaintiff's presence at the hearing.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Julianne Ulrike Stamm v Tiwi Beach Hotel Ltd. [1998] KECA 197 (KLR)", Case Analysis (1998). Civil Appeal No. 57 of 1996. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1998/197/eng@1998-07-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.